Releasing the detailed reasons for rejecting the prime minister’s intra-court appeal against contempt charges, the Supreme Court on Monday ruled that the possibility of contempt being committed by a constitutional functionary was a more, not less, serious matter than if the same had been done by an ordinary citizen.
“In fact, the position which needs to be adopted, and which emerges from a close examination of the Constitution, is quite the opposite: the higher the constitutional office, the greater the onus of responsibility on the holder of such office. One reason for this is that a holder of Constitutional office is under this higher responsibility because he, unlike ordinary citizens, makes an oath to discharge his duties in accordance with the Constitution… and the law. The PM’s oath also requires that he will preserve, protect and defend the Constitution. Therefore, more stringent legal standards apply to him as compared to others who have not taken a similar oath”, the court ruled.
A seven-member special bench of the apex court on February 2, 2012 had decided to proceed with framing of contempt of court charge against the PM who had filed an intra court appeal against the preliminary order of the bench. The appeal was, however, heard by a separate eight-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry and later on the bench after a detailed hearing on February 10 had turned down the appeal through a short order.
The 15-page detailed judgment, authored by Justice Jawwad S Khawaja, ruled that while staying quiet about the PM’s affirmative defences, the opinion highlights important constitutional principles, which have a bearing on this case. “It is clear to us that PM’s claim to a ‘special privilege’ on account of his executive office, which seeks for him greater restraint amounting to an exception from contempt proceedings, does not find any basis in our constitution,” the court ruled.
The judgment ruled that the two salient principles which have been expounded include: firstly that all people, regardless of their stature in society, are equally bound by the law and are expected to obey court orders; and secondly, that the possibility of contempt being committed by a constitutional functionary was a more, not less, serious matter than if the same had been done by an ordinary citizen. “Since this was only the preliminary stage, the judgment refrains from passing any comment on the key defences presented by the PM,” Justice Jawwad S Khawaja ruled, adding that these include the PM’s argument that his act of contempt, if any, was not willful and that he was only following official summaries, which under the rules, he had received.
These defences, the court said, required appraisal of evidence and were best left for adjudication by the trial bench. The court held that at this preliminary stage, all it needed to make up its mind was ‘an arguable case’ that contempt may have been committed. From the simple facts available on record, it was amply clear
that such a case did exist against the PM, since he had not and still has not implemented directives issued in the NRO judgment. It was now up to the PM to present evidence and legal reasons to show how, if at all, the preliminary impression was unfounded.
In explaining this legal position, the court has referred to the Preamble, Article 5 and Article 25 of the Constitution, as well as to statements of the founding fathers of Pakistan, and to its own precedents. The court has explained the underlying spirit of these articles by referring to a well-known saying of the Holy Prophet (Peace Be Upon Him). The Hadith warns that “societies where the law is reserved only for ordinary people, while the powerful were kept shielded from it, faced destruction. The court explains that was in the light of this perennial wisdom that the framers based our constitution on the principle of equality before law. Officials were meant, under our constitution, to diligently and faithfully serve the people and not to rule over them with impunity. Justice Khawaja also expounded an important constitutional doctrine concerning ‘public trust’. According to this doctrine, all constitutional officers hold their office only as a trust for the general public.“Being trustees they are bound to follow the instructions of the general public, the judgment ruled, adding that since these instructions, in a modern democratic society, find their best expression in the form of the constitution and the law, obedience to the same becomes a necessary corollary of the fiduciary duty of trustees. This is why all constitutional functionaries are required to take an oath promising adherence to the constitution and the law.”
The judgment further ruled that in Article 190, they have also been expressly obliged to act in aid of the Supreme Court. If however, constitutional functionaries do not show such obedience, they can be seen as have violated the trust reposed in them by the public. “It is to take stock of such violations of public trust, and not because of any egoistic reasons, that courts are obliged to proceed against violators – a possibility contemplated in our Constitutional’s Article 204,” the judgment added.